Bryn Mawr
Classical Review 97.4.17

Reviewed by Michael Gagarin, The University of
Texas at Austin, gagarin@mail.utexas.edu.

This book
addresses a single question: according to Athenian law, who had the right
to bring a prosecution for homicide? More specifically, was the
prosecution of homicide restricted to those family members specified in
Draco's law (or in the case of a woman her kyrios, or a slave his
master), or was prosecution by a relative only the general rule, with
exceptions being possible in certain cases? Tulin's monograph is directed
against several scholars1 who have argued
that although the law directs family members to prosecute, it is not
explicitly restrictive and would not prevent others from prosecuting in
certain cases. Tulin examines the three pieces of evidence bearing on the
issue -- IG I3 104 (Draco's law), Dem. 47.68-73, Plato,
Euthyphro 3E7-5D7 -- and concludes that the law clearly restricted
prosecution to specific relatives and neither was, nor was thought to be,
ambiguous. He argues that the degree of relationship had to be declared in
the plaintiff's oath and if it was not within the limits set by the law,
the case would not be allowed to proceed. Tulin acknowledges that the
nature of Athenian law imposes certain limitations on this restrictive
argument, but insists that the possibility of non-relative prosecution
exists only as a theory of ingenious modern scholars; for the Athenians
themselves homicide was always, de facto and de jure, a
family matter.

Tulin's treatment of these passages is detailed and
narrowly focused; consideration of procedures other than the DI/KH
FO/NOU is explicitly excluded. The extensive footnotes appear to
comprise about 50% of the total words, and it is not unusual to find a
dozen or more scholars cited on a given issue; an 18-page bibliography and
indices conclude the work. Despite this thoroughness, however, I am not
fully persuaded. Tulin treats many details with sound logic, but his
argument as a whole is less conclusive and is not likely to win over his
opponents. The following brief and highly selective comments are meant to
explain some of my main reservations. I will naturally dwell on
disagreements with Tulin and pass over many points of agreement.

Draco's law (lines 20-23) states that agnate relatives "are to make the
proclamation" (PROEIPEI=N) and others "are to join in the
prosecution" (SUNDIW/KEIN). For Tulin this text, though "not so
explicit as we might have hoped," clearly implies and intends that only
relatives could prosecute. I would agree that Draco envisaged only
standard cases where relatives would prosecute, but the fact that he did
not explicitly make the law restrictive (e.g. by adding "and no one else")
leaves open the possibility that a later litigant could argue for a less
restrictive understanding. It is impossible to say "there was no ambiguity
in the archaic law"; litigants ancient and modern often find ambiguity
where their predecessors, including the original legislator, may have been
confident that none existed, and we have several examples of an Athenian
litigant pushing the law beyond what would appear to be its clear intent
(e.g., Ant. 6, Lys. 13).

In Dem. 47 the speaker, or Trierarch,
relates an episode concerning a woman who was formerly his slave; she was
freed but later returned to live in his house, where she was assaulted by
intruders in his absence. When she died from the blows, the Trierarch was
unsure what to do, and so he consulted the exegetai (religious
expounders) who both explained the law and gave him advice. I summarize
the Trierarch's account with Tulin's translation in quotes and the Greek
at significant points.

First, the law: if there be anyone related
to the woman (PROSH/KWN TH=S A)NQRW/POU), he should carry a spear
and make a proclamation at the tomb and guard the tomb for three days. And
this is our advice: since you were not present and have no witnesses
except your wife and children, do not make a proclamation against anyone
by name, but in general against the perpetrators and the murderers, and do
not bring suit before the basileus. "For that course is not open
to you under the law (OU)DE\ GA\R E)N TW=| NO/MW| E)/STI SOI),2 since the woman is not a relative of
yours" (E)N GE/NEI SOI) nor your servant,3 as you say, "and it is to relatives or to masters
that the law appoints the duty of prosecuting." The exegetai then
add some further explanation and justification: "if you should take the
oath at the Palladium" (a specially solemn homicide oath) ... "you will
lose
the goodwill of many, and if your opponent is acquitted, you will be
thought to have committed perjury, and if you convict him, you will be an
object of malice." They urge him just to bear his misfortune, and since
his friends give the same advice, he does as they say. "For the law
ordains (KELEU/EI) that prosecution shall be by relatives (TOU\S
PROSH/KONTAS) within the degree of children of cousins; and that4 in the oath inquiry shall be made as to
what the relationship is (O(/ TI PROSH/KWN E)STI/N), even if the
victim be a servant, and it is from these persons that criminal actions
shall proceed. But the woman was in no way related to me by blood"
(E)MOI DE\ OU)/TE GE/NEI PROSH=KEN H( A)/NQRWPOS OU)DE/N), nor was
she my servant. "Now (the Trierarch concludes), to tell a false story to
you and support it by an oath ... was a thing I dared not do, even if I
knew
well that I should convict these men."

from prosecuting because he
was neither a relative nor the master of the victim. He could only have
prosecuted by swearing a false oath that he was one of these. Tulin makes
much of this oath, insisting that the point on which the Trierarch refused
to swear falsely must be his relationship to the victim. The rhetorical
structure of the story (he feels) requires this conclusion.

In all
this, Tulin seems more concerned with the trees than the forest. The
Trierarch goes to great lengths to defend his behavior,5 and we may suspect that he is presenting a
self-serving view of the situation -- a possibility Tulin seems not to
take seriously (50-51). Nor does Tulin confront the obvious objection that
the recommendation not to prosecute is presented as advice, not law; the
exegetai could easily have said (or the Trierarch could have
reported that they said), "the law requires a proclamation but prohibits
you from prosecuting because you are not her relative or master." As it
is, they surely imply a difference between their advice and the strict
legal requirement; and the explanation and justification they add to their
advice (including considerations other than the issue of relationship)
further imply that it would not have been uncontroversial. Even today,
when the law has far greater precision and clarity than it had in
classical Athens, a lawyer may assert that certain conduct is legal, while
fully aware that the law could be interpreted differently. Athenian
litigants may claim their behavior was required by law when we can be
quite certain that other courses of action would also have been legally
sanctioned (Lysias 1 has a well-known example). Indeed, even if the
exegetai had issued a clear and unequivocal interpretation of the law,
we could not rule out the possibility that they were mistaken or biased.
In short, this passage is far from conclusive.6

Tulin bases his discussion of
Euthyphro on the conclusion reached from the first two passages,
that
the law restricted prosecution for homicide. He thus defines his task as
determining whether Plato's dialogue "when properly understood" is
consistent with this conclusion. The crucial passage is 4B4-6. Euthyphro
has just informed Socrates that he is prosecuting his own father for
homicide. Socrates expresses amazement at the special insight into piety
Euthyphro must have in order to undertake such an action, and then asks,
"Is the man your father killed a relative (TW=N OI)KEI/WN TIS)?7 Of course he is; you surely wouldn't
prosecute him (AU)TW=|) for homicide on behalf of someone outside
the family (U(PE\R A)LLOTRI/OU)." Tulin takes this as implying
unequivocally that the law is restrictive. To reach this conclusion, he is
forced to downplay the clear emphasis Plato puts on the fact that
Euthyphro is prosecuting his own father. Such an action would normally
require a compelling moral obligation, such as the murder of a relative,
whereas in this case the death is arguably unintentional and the victim is
a dependent but not a family member. But nothing in the discussion
suggests that Euthyphro would not legally be allowed to prosecute, and
Socrates does not say this; rather, he says (or implies) that one would
surely not prosecute one's own father8
unless he had killed a relative. Moreover, although Euthyphro's family and
friends are silent on the issue of his relationship with the victim (as
Tulin notes), they voice their objections to the idea of prosecuting one's
father at some length (4D5-E1) without mentioning the victim's
relationship with Euthyphro. Clearly this was not a major factor in their
view that he should not prosecute.

Anyone who wants to study this
subject in detail must begin with Tulin's book. Others, however, will want
to rely on more summary treatments elsewhere.9

6. It may be important
that
there
seems to be a significant distinction between the language of the law,
which uses PROSH/KWN for "relative," and the justifications offered
for the Trierarch's not prosecuting, which use the limiting expression
(E)N) GE/NEI). The former might be understood more broadly than
"relative," and could include the Trierarch's relationship with his former
servant; the latter restricts interpretation of the law to "blood
relatives."